State v. Reed

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NOT DESIGNATED FOR PUBLICATION

No. 113,845

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROGER REED,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN KISNER, JR., judge. Opinion filed May 13, 2016.
Appeal dismissed.

Meryl Carver-Allmond, of Capital Appellate Defender office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MCANANY, P.J., PIERRON and SCHROEDER, JJ.

Per Curiam: Roger Reed pled guilty to felony theft for having stolen a pickup
truck. He now appeals his sentence, relying on our Supreme Court's holding in State v.
Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). Before ruling on the merits of Reed's
claim, we must consider whether the issue is now moot based on the following
chronology of facts.

On June 2, 2014, Reed entered his guilty plea. Reed's presentence investigation
report (PSI) listed 67 prior convictions, including 3 pre-1993 burglary convictions. With
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this extensive criminal history, Reed had a criminal history score of A. This score was
calculated by classifying three of his pre-1993 convictions as person felonies.

On December 4, 2014, the court held the sentencing hearing. There was no dispute
that Reed's criminal history score was A. The district court sentenced Reed to a
controlling term of 15 months in prison with a postrelease supervision term of 12 months.

On December 12, 2014, Reed filed his notice of appeal.

On December 19, 2014, Reed decided to pursue relief by means of a motion to
correct an illegal sentence based on the holding in State v. Dickey, 50 Kan. App. 2d 468,
329 P.3d 1230 (2014), aff'd 301 Kan. 1018, 350 P.3d 1054 (2015). In his motion he
challenged the classification of his three pre-1993 burglary convictions as person
felonies. On January 12, 2015, he filed an amendment to his motion; and on February 13,
2015, Reed's new counsel filed a separate motion to correct illegal sentence.

At the hearing that followed, the district court denied relief because: (1) the ruling
in Dickey was not final; (2) Reed agreed to his criminal history score at sentencing; (3)
Reed's challenge was not made in his direct appeal; and (4) the convictions were not
otherwise subject to being reclassified.

Reed brought the present appeal.

On May 22, 2015, Reed finished serving the imprisonment portion of his sentence
and was released to serve his postrelease supervision period. This was confirmed by the
State's notice to that effect pursuant to Supreme Court Rule 2.042 (2015 Kan. Ct. R.
Annot. 18). The State also notified us that Reed had absconded from postrelease
supervision and as of January 13, 2016, was still on the loose. Reed has not challenged
the assertions in the State's notice.
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Before considering the merits of Reed's claim, we must determine whether the
issue is moot. Because Reed has completed the prison portion of his sentence, the State
moved for us to dismiss this appeal on the grounds of mootness. A panel of this court
initially retained the appeal, noting that Reed is still serving (or is supposed to be serving)
a term of postrelease supervision. The matter is again before us.

We have unlimited review of the State's claim that the appeal is moot. See State v.
Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012).

"'[A]n appeal will not be dismissed as moot unless it clearly and convincingly appears the
actual controversy has ceased and the only judgment which could be entered would be
ineffectual for any purpose and an idle act insofar as rights involved in the action are
concerned.' In re M.R., 272 Kan. 1335, Syl. ¶ 2, 38 P.3d 694 (2002)." State v.
Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012).

Kansas appellate courts generally do not decide moot questions or render advisory
opinions. State v. Torres, 293 Kan. 790, 792, 268 P.3d 1197 (2012). A justiciable
controversy has definite and concrete issues and "adverse legal interests that are
immediate, real, and amenable to conclusive relief." State ex rel. Morrison v. Sebelius,
285 Kan. 875, 890-91, 179 P.3d 366 (2008). This is a court policy which recognizes that
the role of the court is to "'determine real controversies relative to the legal rights of
persons and properties which are actually involved in the particular case properly brought
before it and to adjudicate those rights in such manner that the determination will be
operative, final, and conclusive.'" State v. Bennett, 288 Kan. 86, 89, 200 P.3d 455 (2009)
(quoting Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716
[1996]).

The sentencing court imposed a 15-month prison sentence. The length of Reed's
prison sentence was a function of his criminal history score. Reed has completed that
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portion of his sentence, which now renders his complaint about his criminal history score
moot.

The prison portion of Reed's sentence is separate and distinct from the postrelease
portion of his sentence. In State v. Gaudina, 284 Kan. 354, 358-59, 160 P.3d 854 (2007),
the defendant's sentence was reduced after a successful appeal. Although he had not been
released from the confinement portion of his sentence, he contended that the excess
sentence should be credited towards the postrelease period of his sentence. The Supreme
Court rejected this contention, finding that postrelease supervision does not begin until
after the confinement portion of the sentence has been served.

In State v. Brown, No. 112,825, 2015 WL 9286987 (Kan. App. 2015)
(unpublished decision), petition for rev. filed January 14, 2016, a panel of this court
dismissed as moot a defendant's challenge to his criminal history score under Dickey.
While Brown would be entitled to relief under Dickey because his pre-1993 burglary
convictions were improperly classified as person felonies, remanding Brown's case for
resentencing with a corrected criminal history score would change nothing; "he would
still be on postrelease supervision and the remaining term of the postrelease supervision
would be the same." Brown, 2015 WL 9286987, at *4. See State v. Dunn, No. 111,283,
2015 WL 2414362 (Kan. App. 2015) (unpublished opinion), rev. denied 303 Kan. ___
(February 9, 2016).

In State v. Upham, No. 97,961, 2008 WL 1847703 at *2 (Kan. App. 2008)
(unpublished opinion), the Court of Appeals dismissed an appeal for mootness because
the defendant had completed the prison portion of his sentence and the only issue was
whether the sentencing court had considered placement in Labette Correctional
Conservation Camp before sending him to prison.

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Similarly, in State v. Johnson, 39 Kan. App. 2d 438, 442, 180 P.3d 1084, rev.
denied 286 Kan. 1183 (2008), the appeal was moot because (1) the defendant had served
the prison portion of his sentence, (2) the defendant could not receive credit for time
served against his postrelease supervision under Gaudina, and (3) there was no statutory
authority to reduce the amount of a postrelease supervisory term after sentencing. See
Spencer v. Kemna, 523 U.S. 1, 7-8, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998).

Reed argues that the case is not moot because there is a danger that if Reed is
convicted of a subsequent crime, the sentencing court may take judicial notice of the
journal entry in this case, which lists an incorrect history score. He relies on the holding
in State v. Lamunyon, 21 Kan. App. 2d 281, 286, 898 P.2d 1182 (1995), aff'd 259 Kan.
54, 911 P.2d 511 (1996), which is contrary to the more recent decisions in Brown and
Dunn discussed above.

Merely taking judicial notice of a prior criminal history finding is not sufficient to
establish a challenged criminal history. See K.S.A. 2015 Supp. 21-6814 (previously
K.S.A. 21-4715). Kansas law

"clearly provides a defendant the right to file a written objection to his or her criminal
history worksheet and requires the State to carry the burden of producing further
evidence to prove the convictions contained in the worksheet. . . .
. . . .
"Therefore, we find, as a matter of statutory interpretation, that a defendant may
file a written objection to his or her criminal history worksheet, including those
convictions which may have been contained in a previous criminal history worksheet,
and that such an objection places the burden on the State to produce further evidence
establishing the existence of the challenged conviction(s) by a preponderance of the
evidence." State v. Schow, 287 Kan. 529, 539-40, 197 P.3d 825 (2008).

We are not persuaded by Reed's argument based on Lamunyon.
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Reed also contends this appeal is not moot because a decision on appeal is
necessary to determine whether Reed may sue his trial attorney for legal malpractice. See
Garcia v. Ball, 303 Kan. 560, 363 P.3d 399 (2015). In Ball, our Supreme Court held that
the exoneration rule requires that a claim that the lawyer's malpractice caused the
defendant to serve an illegal sentence requires the defendant to obtain postconviction
relief from the illegal sentence.

But, as the State argues, we should not render advisory opinions on the chance that
a defendant may pursue a malpractice claim in the future. As noted earlier, a justiciable
controversy has the characteristic of being, among other things, immediate. State ex rel.
Morrison v. Sebelius, 285 Kan. at 890-91. Whether Reed may at some future date pursue
a malpractice claim does not satisfy the element of immediacy. Here, a reclassification of
Reed's criminal history score no longer has any legal effect on his status in this case.
Reed is currently serving his postrelease supervision, the length of which is determined
by statute and not by his criminal history score. See K.S.A. 2015 Supp. 22-3717(d)(1). A
ruling in Reed's favor in this case would change nothing.

Appeal dismissed as moot.